Is wage theft illegal?
In short, yes.
In some states (like Victoria) the government introduced laws making it a criminal offence for employers to dishonestly and deliberately steal wages from their employees.
But even in states where it’s not a criminal offence, underpaying workers is against the law and unions can help enforce your rights.
The best way to avoid having your wages stolen in the first place is to be a union member.
Know what you should be paid
You employer is legally obliged to pay you a minimum wage which varies depending on which Award you fall under.
Every industry has its own Award and its own specific minimum wage rates – the retail industry for example has the General Retail Award, and the fast food sector has the Fast Food Industry Award.
Unless you’re on the supported wage system, an apprentice or trainee, or junior rates (for those 21 years of age or less), the national minimum wage is the absolute least you can be paid no matter what job you do.
And importantly, don’t forget superannuation. You are guaranteed at least 9.5% in super in addition to your wages and this will increase to 10% on 30 June 2022.
Earning more than minimum
Should you be in a workplace with an Enterprise Agreement in place, then you may well be entitled to pay that is higher than the minimum wage.
Enterprise Agreements are the result of deals made between employers and employees and their union about the terms and conditions of their employment.
They must always leave employees better off than they would be beforehand and these Agreements replace the Award in most respects.
But this also means that you cannot be paid any less than what is outlined in the Agreement. Doing so still constitutes wage theft.
Enterprise Agreements are a great example of how you, your workmates and your union can work together to improve wages and conditions.
Check your pay slip
Your employer is legally required to provide you a pay slip each time you are paid.
You must be given a pay slip (hard copy or electronic) within one working day of being paid.
Some unscrupulous employers don’t provide pay slips to intentionally keep you in the dark.
They know if you don’t have information about how many hours you’re being paid for, the pay rates and any other entitlements or allowances, then you can’t check it.
This interview with Centre for Future Work senior economist Alison Pennington on The Drum covers some of the methods these questionable employers use to steal wages.
What about casual rates and penalty rates?
Casual workers are legally entitled to what is called ‘casual loading’. This is an additional 25% on top of the base rate of pay.
For example, as at February 2022 the national minimum wage is $20.33 per hour – if you are a casual then you should be paid an additional 25% or $25.41 per hour.
Casual workers also receive penalty rates – these are extra payments on top of the regular wage.
They’re meant to compensate for hours spent working at inconvenient times, like when you work overtime, at night, on the weekend or on a public holiday.
Your award will inform you exactly what those extra payments should be.
Power in numbers
If you find that you are being paid less than what you’re entitled, talk to your colleagues.
You’re likely not the only one being underpaid and chatting to your colleagues is the best way to understand the depth of the problem.
The next step is to organise yourselves: join your union and get their advice. No one knows better how to tackle a payment problem than workers who have seen this situation before.
When you do approach your boss, make sure you do it as a group – you will always be stronger together than as individuals.
Talking to your employer
At this point, your union is in the best position to provide advice with how to talk to your employer.
One thing to keep in mind is that you want to put everything in writing, including when you approach your boss and discussions that may come from when you first raise the issue.
The paper trail is your friend. Make sure you have as many pay slips possible downloaded or printed so they can be used as proof.
Keep in contact with your union throughout. Ideally, your employer will apologise and pay back everyone in a lump sum or stagnate repayments over a few months. However, if the process isn’t resolved, talk with your union.
Beware these red flags
The employer says some employees are satisfied with receiving less
Even if this is the case, just because some workers are happy getting paid less than what they’re owed, it’s still illegal to pay below the minimum wage (or below the wage rates in your Enterprise Agreement if you have one).
That means the employer can’t use this as an excuse to pay anyone anything less than what they are owed. Ignorance of the required pay or superannuation is also not an excuse.
Divide and conquer tactics
If your employer begins pulling aside you and your colleagues to have one-on-one chats, then the sirens should be blaring.
Bad employers will split up workers like this because they know that your bargaining power is weakened when you’re alone.
It is also a red flag if your employer says that you’re not allowed to talk to your co-workers about what you’re getting paid. There is no Fair Work law that prevents workers from sharing this information.
But you are always stronger together and the sooner your employer hears you have a union behind you, the quicker they meet demands.
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The ultimate guide to getting paid what you’re owed